Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)

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In this unpublished decision, the Board of Immigration Appeals (BIA) held that the respondent was eligible to adjust status under INA 245(i) based on a visa petition he previously used to adjust status because his current petitioner was different than his prior petitioner. The Board also held that the respondent was eligible for adjustment of status notwithstanding that he unlawfully reentered the country because the DHS elected not to reinstate his prior order. The decision was issued by Member Edward Kelly and was joined by Vice Chairman Charles Adkins-Blanch and Member Ana Mann.

Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)

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Description:

In this unpublished decision, the Board of Immigration Appeals (BIA) held that the respondent was eligible to adjust status under INA 245(i) based on a visa petition he previously used to adjust status because his current petitioner was different than his prior petitioner. The Board also held that the respondent was eligible for adjustment of status notwithstanding that he unlawfully reentered the country because the DHS elected not to reinstate his prior order. The decision was issued by Member Edward Kelly and was joined by Vice Chairman Charles Adkins-Blanch and Member Ana Mann.

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Name: URBIETA-GUERRERO, OMAR A 076-837-552

Date of this notice: 12/6/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is beingprovided to you as a courtesy. Your attorney or representative has been served with thisdecision pursuant to 8 C.F.R. § 1292.5(a). If the attached decision orders that you beremoved from the United States or affirms an Immigration Judge's decision ordering that yoube removed, any petition for review of the attached decision must be filed with and receivedby the appropriate court of appeals within 30 days of the date of the decision.

Falls Church, Virginia 22041

File: A076 837 552-Livingston, TX Date:

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Raed Olivieri Gonzalez, Esquire

APPLICATION: Remand; adjustment of status; voluntary departure

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge'sdecision dated June 27, 2017. The Immigration Judge found the respondent removable,pretermitted his application for adjustment of status under section 245 of the Immigration andNationality Act, 8 U.S.C. § 1255, and denied his request for voluntary departure, under section240B of the Act, 8 U.S.C. § 1229c. On appeal, the respondent requests remand for furtherconsideration of adjustment of status. The record will be remanded.

Before the Immigration Judge, the respondent sought adjustment of status based on theapproved immigrant visa petition (Form 1-130) that his United States citizen wife filed on hisbehalf, which was approved on February 8, 2017. The respondent argues that he is eligible to usethis approval, in conjunction with the 1-130 that was filed on his behalf by his father and approvedin 2002, and in conjunction with a waiver (Form 1-601) under section 212(h) of the Act, 8 U.S.C.§ l 182(h).

In his June 27, 2017, decision, the Immigration Judge concluded that grandfathering in thisinstance is precluded by 8 C.F.R. § 204.2(h)(2) (U at 2-3). The respondent disagrees.

The Legal Immigration and Family Equity Act (LIFE Act)1 temporarily reinstated relief undersection 245(i) of the Immigration and Nationality Act to certain aliens who were ineligible to adjuststatus because they were barred under section 245(a) or section 245(c) of the Act. The LIFE ActAmendments of 2000 extended the sunset provisions for aliens eligible to apply for adjustment ofstatus under section 245(i) of the Act. In order to be grandfathered under the LIFE Act, therespondent must: (1) be a beneficiary of an immigrant visa petition that was filed betweenJanuary 15, 1998, and April 30, 2001; (2) have been present in the United States on December 21,2000; (3) currently be the beneficiary of a qualifying immigrant visa petition (either the originalForm 1-130 or 1-140, through which he was grandfathered, or through a subsequently filedimmigrant petition); (4) have a visa immediately available to him; and (5) be admissible to theUnited States. In addition, the respondent must establish that adjustment of status is warranted in

The respondent appears to fall within this group of eligible aliens. The record reflects that the respondent's father filed a visa petition on his behalf on March 22, 1999. The respondent was brought into the United States by his parents in 1989, when he was a child, and he did not leave

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the United States until 2010, pursuant to a grant of voluntary departure. The respondent is currently the beneficiary of an approved visa petition, filed on his behalf by his United States citizen wife. Moreover, we agree with the respondent that he can recapture the earlier date because 8 C.F.R. § 204.2(h)(2) only applies to visa petitions where both the petitioner and the beneficiary are the same. In this case, the petitioners are not the same. The earlier petitioner was the respondent's father; the current petitioner is the respondent's wife.

In his June 9, 2017, decision, the Immigration Judge also said that the respondent cannot apply for adjustment of status because aliens whose removal orders have been reinstated are ineligible for adjustment of status (IJ at 2). See section 241(a)(5) of the Act, 8 U.S.C. § 123 l(a)(5). However, in this case, the Department of Homeland Security (OHS) did not reinstate the respondent's prior removal order with the filing of a Notice of Referral to Immigration Judge (Form 1-863), placing him in withholding proceedings pursuant to section 241(a)(5) of the Act. Instead, the OHS filed a Notice to Appear (Form 1-863), placing him in removal proceedings (Exh. 1).

Finally, in his June 9, 2017, decision, the Immigration Judge said that the respondent cannot apply for adjustment of status because there is a 10-year bar to adjustment of status if an alien fails to voluntarily depart the United States within the time period specified (IJ at 2). See section 240B(d) of the Act, 8 U.S.C. § 1229c(d). However, in this case, it is undisputed that the respondent complied with the voluntary departure order, but thereafter illegally re-entered the United States. Consequently, this 10-year bar does not apply.

Consequently, we find it necessary to remand the record for the Immigration Judge to further consider the respondent's eligibility for adjustment of status.2

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

2 Because of the disposition of this issue, we find it unnecessary to address the other issues raised on appeal.